Research › Search › Judgment

Kerala High Court · body

2022 DIGILAW 487 (KER)

Udayan, S/o. Padmanaban v. State Of Kerala

2022-06-17

K.BABU

body2022
JUDGMENT : 1. Aggrieved by the judgment dated 07.07.2008, passed by the Additional Sessions Court (Adhoc-I), Pathanamthitta in S.C.No.4/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.08.2003 at 5.30 p.m, the appellant was found in possession of 5 litres of arrack in a black can at Poozhikadu muri. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Adoor. The case was committed to the Sessions Court, Pathanamthitta from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P4 and MO1. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. V.Sethunath, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: (i) The arrest of the accused is doubtful. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. According to the prosecution, on 25.08.2003 the accused was arrested from the place of occurrence along with the contraband substance. 9. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. According to the prosecution, on 25.08.2003 the accused was arrested from the place of occurrence along with the contraband substance. 9. The learned counsel for the appellant contended that the prosecution failed to prove the alleged arrest as the arrest memo has not been produced before the Court. 10. I have gone through the materials placed before this Court. No arrest memo has been produced. The detecting officer has no case that the arrest memo was prepared but not produced before the Court. 11. In D.K.Basu v. State of West Bengal [ 1997 (1) SCC 416 ], the Apex Court directed that in all cases of arrest, preparation of 'arrest memo' is a mandatory requirement. The Apex Court directed that the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest, and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 12. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the court. The prosecution has no case that the 'arrest memo' and 'arrest intimation' were prepared, but they could not be produced before the court. The necessary inference is that the 'arrest memo' and 'arrest intimation' were not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The necessary inference is that the 'arrest memo' and 'arrest intimation' were not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The non-compliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the ground. 13. This Court in Ramankutty v. Excise Inspector, Chelannur Range [ 2013 (3) KHC 308 ] had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 14. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution failed to establish the genuineness of the sample that reached the laboratory: (a) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (b) The detecting officer has not given evidence as to the nature and description of the seal used. (c) The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced. (d) Forwarding note/requisition for sending sample to the laboratory has not been produced and marked. 15. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. There is nothing to show that the specimen of the seal was produced before the Court. This facilitates the comparison of the seal on the sample and the specimen seal so as to ensure the genuineness of the sample. The prosecution also failed to show that the specimen of the seal was forwarded to the Chemical Examiner's laboratory to ascertain the genuineness of the sample produced for analysis. The sample was forwarded from the Court on 16.09.2003 as is evident from Ext.P4 Certificate of Chemical Analysis. The prosecution also failed to show that the specimen of the seal was forwarded to the Chemical Examiner's laboratory to ascertain the genuineness of the sample produced for analysis. The sample was forwarded from the Court on 16.09.2003 as is evident from Ext.P4 Certificate of Chemical Analysis. But the sample reached the laboratory only on 03.11.2003. The custody of the sample during the period from 16.09.2003 to 03.11.2003 has not been explained by the prosecution. 16. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 17. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 18. In Sasidharan v. State of Kerala [ 2007 (1) KLT 720 ], this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on State of Rajasthan v. Daulat Ram [ AIR 1980 SC 1314 ] in Sasidharan's case (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)], this Court reemphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc., of the contraband to be sent for Chemical Examination. In Sathi's case (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. In Sathi's case (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under Section 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in Sasidharan's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [ 2011 (3) KLT 353 ]. 19. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 20. In Rajamma v. State of Kerala [ 2014 (1) KLT 506 ], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. 21. In Ramachandran v. State of Kerala [ 2021 (1) KLT 793 ] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 22. In the absence of any evidence to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory, Exhibit P4 Certificate of Chemical Analysis has no evidentiary value. 23. In Vijay Pandey v. State of U.P ( AIR 2019 SC 3569 ) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 24. 23. In Vijay Pandey v. State of U.P ( AIR 2019 SC 3569 ) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 24. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [ AIR 1980 SC 1314 ], Sasidharan v. State of Kerala [ 2007 (1) KHC 275 ]}. 25. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 26. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above.